Surveys by Stonewall (1993), TUC (2000), Unison (2003) and NUJ (2004) all
show that around half their LGBT members surveyed have suffered harassment
or discrimination in the workplace.
1. The Employment Equality (Sexual Orientation) Regulations 2003
This law protects lesbians, gay men, bisexuals and heterosexuals in the
workplace, in vocational training and in higher education. It does not extend to
discrimination in the provision of goods and services, and does not cover
transgender issues. This law also protects on the grounds of perceived, as well
as actual sexual orientation.
Under the EE (SO) regulations Sexual Orientation is defined as:
Orientation towards persons of the same sex (lesbians and gay men)
Orientation towards persons of the opposite sex (heterosexual)
Orientation towards persons of the same sex and the opposite sex
The regulations cover:
Direct discrimination: which means treating a person less favourably because
of their real or perceived sexual orientation. This can include detrimental
treatment in relation to appointment, training, promotion or dismissal. DD also
covers discrimination against a person because of the sexual orientation of
someone else – e.g. someone with gay friends, or someone who refuses to
discriminate against LGB staff when instructed by their employer. Direct
discrimination is unlawful whether it is intentional or not.
Indirect discrimination: which means that an organisation must not have
selection criteria, policies, benefits or practices that have the effect of putting
people of a particular sexual orientation at a disadvantage when applied to all,
and which cannot be justified unless it can be shown that it is a proportionate
means of achieving a legitimate aim or need. Indirect discrimination is unlawful
whether it is intentional or not.
Harassment: defined as unwanted conduct, which is offensive, intimidating,
hostile, degrading, humiliating, or in any way distressing or frightening. It includes
intentional bullying which is obvious or violent, but can also be subtle and
insidious. It may involve teasing, tormenting, the spreading of rumours or gossip,
or name-calling. It may be about the individual‟s sexual orientation – whether real
or perceived - or about the sexual orientation of the friends, a member of the
family or associates of the individual. Or it may not be targeted at any one
individual at all, but consist of an environment which tolerates the telling of
homophobic jokes. The victim‟s perception of the effect of the behaviour is
important. Harassment is unlawful.
Both organisations and the individuals working for them will be held responsible
for their actions, and if taken to an Employment Tribunal, both may be liable to
pay compensation for harassment.
Victimisation: is when a person is treated detrimentally because they have
complained about discrimination or harassment or have given evidence relating
to a complaint about discrimination of harassment. Victimisation is unlawful.
Normally, members should lodge a grievance with the employer in the first
instance if complaining against harassment or discrimination, but if this could
result in further harassment or victimisation, then the member can go straight to
lodging an ET1.
Burden of proof: The burden of proof under the regulations is the same as that
which applies in sex discrimination cases. This means that if a case is taken to
an employment tribunal, once the applicant has shown that they have
experienced less favourable treatment, it is for the respondent (the employer) to
prove that they did not commit the act of discrimination or harassment.
As with other anti-discrimination legislation, the new regulations contain an
exemption for national security, permitting acts that would otherwise be lawful,
so long as they can be justified on the grounds of national security. Similarly, the
regulations contain exemptions for the purposes of genuine occupational
requirements and positive action.
Genuine occupational requirement: The Employment Equality (Sexual
Orientation) Regulations contain an exemption, similar to that in sex and race
discrimination law, when recruiting for a job where being of a particular sexual
orientation is a genuine occupational requirement for that post.
The guidance to the regulations, published by arbitration and conciliation service
ACAS, advises that:
Staff can be recruited on the basis of their sexual orientation where this is
a genuine occupational requirement (GOR) for the job;
Each post should be considered individually both in terms of the duties of
the job and the context within which it is carried out. Organisations should
not expect to apply a blanket GOR to all posts;
Organisations should consider whether it is proportionate to apply a GOR.
For instance, if only a small part of the job qualifies for a GOR then it may
be possible to redistribute work or reorganise roles in such a way as to
avoid the necessity to apply a GOR to a particular post; and
Organisations should be clear about the link between the requirements of
the job and sexual orientation as, in the event of an employment tribunal
claim on the grounds of sexual orientation, the burden of proof will be on
the employer to show a GOR.
Religious organisations: The Employment Equality (Sexual Orientation)
Regulations go further than the GOR provision and have an additional exemption
relating to employment for purposes of an organised religion (regulation
7(3)). This says that an employer can apply a requirement related to sexual
orientation “so as to comply with the doctrines of the religion” or to avoid
conflicting with strongly held religious convictions of a significant number of the
religion‟s followers”. However, this exemption will only apply to clergy or formal
religious office holders, as the judge, the Right Honourable Justice R, ruled after
the legal challenge made by Trade Unions, that the regulation was held to have
limited scope. This means that the judge accepted the argument made by the
unions that the regulations could not be used to sack a teacher or caretaker
working in a religious school.
Marital status: Regulation 25 says that it will not be unlawful to do anything
“which prevents or restricts access to a benefit by reference to marital status”.
The explanatory memorandum that goes with the regulation says:
“This means that rules based on marriage cannot be challenged as indirectly
discriminatory by reason of the fact that it is unlawful for same sex partners to marry in
the UK. So, for example, if survivor benefits in an employer’s occupational pension
scheme are only available to the widow(er) of a deceased employee, this will not be
discrimination on grounds of sexual orientation under the regulations”.
The Trade Unions also challenged this exemption, but lost. The Government
argued that the cost of allowing pension survivor benefits to unmarried couples is
prohibitive. However, the introduction of Civil Partnership appears to partially
resolve the issue, as couples registering their partnership will be entitled to a
survivor‟s pension, backdated to 1988, from their civil partner‟s contracted-out
occupational or personal pension scheme, public service pension scheme or
non-contracted out scheme which currently pays survivor benefits to widows and
Positive action: The regulations contain an exemption allowing for positive
action in certain circumstances.
Regulation 26 says that it will not be unlawful – where it seems reasonable to
prevent or compensate for disadvantages linked to sexual orientation – to:
Afford persons of a particular sexual orientation access to facilities for
training which would help fit them for particular work; or
Encourage persons of a particular sexual orientation to take advantage of
opportunities for doing particular work.
It would also cover the actions of trade unions, for example, in providing training
or encouragement to hold posts in the union, where this compensates for a
2. Sex Discrimination Act 1975 (SDA)
Under the Sex Discrimination Act 1975 (SDA), discrimination on the grounds of
sex occurs when an employer treats one sex less favourably than another. The
Act protects men as well as women. The employment provisions of the Act cover
recruitment, transfer, training and promotion, access to work-related benefits,
facilities and services, dismissal and any other detriment.
Employees have the right to claim under the Sex Discrimination Act from the
time they start work if they believe they have been treated differently from other
employees on the grounds of their sex, or because they are married or in a civil
partnership. There have been several cases that used this Act together with the
European Equal Treatment Directive and Article 119 to challenge
discrimination on the grounds of sexuality but without success. The Equal
Treatment Directive states that there shall be no discrimination whatsoever on
grounds of sex either directly or indirectly by reference in particular to marital or
In Grant v Southwest Trains, Lisa Grant claimed that it was discrimination not
to grant a free travel pass to her same sex partner. She claimed that the
concessions would have been granted to a man in the same position as she who
lived with a woman partner. However, the European Court of Justice rejected this
argument and the case was lost.
In Smith v Gardner Merchant Ltd, the Court of Appeal decided that to dismiss a
person on the grounds of their sexual orientation does not fall within the Sex
The case of Secretary of State for Defence v MacDonald  IRLR431
established that claims of discrimination based on sexual orientation could not
normally be pursued using sex discrimination law. This was confirmed by the
House of Lords in the case of Shirley Pearce, a teacher who had been subjected
to systematic abuse from pupils at the school where she worked because she
was a lesbian (Pearce v Governing Body of Mayfield School  UKHL
The European Commission’s Code of Practice to combat sexual harassment
does cover lesbians and gays. The 1991 Guide to the Code of Practice states
that “harassment on grounds of sexual orientation undermines the dignity at work
of those affected and it is impossible to regard such harassment as appropriate
workplace behaviour”. This Code does not have the force of law but Tribunals
can be asked to take it into account where relevant.
3. The Health and Safety at Work etc Act 1974 (HSWA)
The Health and Safety at Work etc Act 1974 requires employers to protect the
health, safety and welfare at work of their employees (Section 2(1)) and to
provide a safe working environment (Section 2(2)(e)).
Under the Management of Health and Safety at Work Regulations 1999,
employers also have a duty to carry out an assessment of the risk to their
employees‟ health and safety, and to take preventative and protective measures
to deal with the risks identified. Risks to mental health should be included.
Guidance published by the Health and Safety Executive (HSE) points out that
employers‟ duties include taking steps to make sure workers do not suffer stress-
related ill health when meeting their legal obligations.
The HSE publication Tackling work-related stress: a manager’s guide
identifies bullying and harassment as causes of stress, in the category
“Relationships”. It‟s guidance, which is not statutory, says: “Bullying and
harassment are two forms of behaviour that are unacceptable in organisations
and almost inevitably generate stress and can lead to stress-related illnesses”.
Safety reps can use their legal rights under the Safety Representatives and
Safety Committees Regulations 1977 to investigate sources of stress, such as
bullying and harassment. Reps also have the right to take up member‟s health
and safety complaints and talk to them in confidence, and can legitimately raise
bullying and harassment as a health and safety issue at safety committees.
Safety policies can be reviewed under Section 2(3) of the HSWA to include a
section on bullying and how to deal with it.
Compensation for personal injury
It may be possible to take a personal injury case if the worker can demonstrate
that workplace bullying has resulted in physical or psychological injury. The
worker needs to show that:
They suffered injury (or a medically recognised psychological condition) as
a result of bullying;
The employer knew the bullying was likely to cause injury; and
The employer failed to take reasonable steps to prevent it.
Unions have helped a number of bullied members to take cases to the civil
courts. Court actions must be raised within 3 years of the act complained of.
4. Protection from Harassment Act 1997
Together with the Criminal Justice and Public Order Act 1994, this act can be
used to deal with harassment at work under the criminal law, by creating an
offence of criminal harassment and causing fear of violence. Civil remedies such
as injunctions are also available. The scope of the Act, which was intended to
address „stalking‟, can include harassment against gay or lesbian employees, as
long as the conduct occurs on more than one occasion and causes alarm and
distress. Claims have to be brought through the Civil Courts within 3 years of the
acts of harassment. Criminal offences are taken up by the police and should be
reported as soon as possible.
5. Human Rights Act 1998 (HRA)
The main areas where the HRA could be invoked in the workplace are in
disciplinary and grievance procedures, as well as employment tribunal
procedures. The Act provides a cause of action against the state – not against
private individuals. This law cannot be used as a standalone law, but may be
used as an „add on‟ to strengthen a case.
Article 8 - Right to respect for private and family life – privacy extends to the
workplace, and private life includes a right to respect for personal identity,
including sexual identity, moral or physical integrity, sexual activities and
personal relations. Article 8 will also cover employers monitoring correspondence
including letters, email, faxes and telephone calls. However, security checks at
work do not of themselves interfere with respect for private life.
Article 10 – Freedom of expression – expression covers words, pictures,
images and actions intended to express an idea, or present information. The
expression may relate to any subject, from opinions on politics, commerce and
the arts, although these subjects do not all invite the same degree of protection.
In the case of public authority employers, the HRA creates a new right of action
for whistleblowers who are subjected to detriment by their employer. Freedom of
expression can include the right for a person to express his or her ideas through
the way in which he or she dresses.
6. Sex Discrimination (Gender Reassignment) Regulations 1999
The Sex Discrimination (Gender Reassignment) Regulations 1999 amended
the Sex Discrimination Act 1975, making it unlawful to treat a person less
favourably on the grounds that they intend to undergo, are undergoing or have
undergone gender reassignment. This is defined as “a process undertaken under
medical supervision for the purposes of reassigning a person‟s sex by changing
physiological or other characteristics of sex, and includes any part of such a
The regulations arose after the 1996 case of P v S and Cornwall County
Council, when the European Court of Justice ruled that transsexual people are
covered under the 1976 EEC Equal Treatment Directive.
Harassment of an individual on the ground of gender reassignment – either by
their employer or by other employees – will usually be a form of unlawful
Transsexual people have also won tribunal cases against their employers for
R was an engineer on the adventure rides at a funfair, who underwent gender
reassignment and continued to work at the funfair. She was the only woman among a
dozen engineers. R’s colleagues ostracised her, insulted and intimidated her and
prevented her from working (by damaging and stealing her tools, refusing to help her lift
heavy loads and so on). R became ill; while she was absent following a suicide attempt,
she was dismissed.
At an employment tribunal, R complained of sexual harassment, which is unlawful under
the Sex Discrimination Act, and was awarded compensation against the funfair. The
Employment Appeal Tribunal dismissed an appeal by the employer.
The SDA says it is unlawful to victimise someone by treating him or her less
favourably because they have made a complaint about gender reassignment
discrimination. It is equally unlawful to victimise someone who gives evidence on
behalf of a person who has complained of unlawful discrimination.
An employer is liable for any act done by an employee in the course of their
employment (with or without the employers knowledge or approval), unless the
employer can show that he or she had taken steps as were reasonably
practicable to stop the employee doing the particular act or acts of that kind, such
as providing equal opportunities training to all employees, and dealing thoroughly
with any discrimination complaints.
Employees remain individually liable for their own discriminatory acts, even
where the organisation is potentially liable also.
Exceptions which allow discrimination against transgender people:
If the employer can show there is a genuine occupational qualification
(GOQ) which means that the job has to be done by someone of a
particular sex, and that it is reasonable to prevent the transsexual person
from doing the job as a result. This is known as a „single sex GOQ‟.
If the job involves conducting intimate searches pursuant to
Statutory powers (such as the Police and Criminal Evidence Act).
If the job involves working in a private home where there would be
close physical or social contact, or knowledge of the intimate details of
a person‟s life, and the employer can show that people would object.
In addition, there are some limited temporary exceptions, which apply
during the process of gender reassignment only (see below).
Nor does the legislation apply to employment for the purposes of an organised
religion, which for religious reasons is limited to those who are not undergoing
and have not undergone gender reassignment.
If someone has a full gender recognition certificate under the Gender
Recognition Act 2004 it is not lawful to discriminate other than on grounds that
would apply to anyone else of their acquired gender.
So a male to female transsexual person could only be lawfully discriminated
against in a situation where it would be lawful to discriminate against any other
7. Gender Recognition Act 2004 (GRA)
The Gender Recognition Act 2004 gives legal recognition in their acquired
gender to transsexual people who satisfy the Gender Recognition Panel (a
judicial body of lawyers and doctors) that they:
a. Have or have had gender dysphoria, and
b. Have lived in the acquired gender for two years prior to the
c. Intend to live permanently in the acquired gender.
The Panel or the Secretary of State can also apply for medical evidence, marital
status and other information, which must be given for an application to be
Following a successful application, a transsexual person will acquire the rights
and responsibilities of their acquired gender from the date of recognition.
Changes to Legal Identity
The gender recognition process ensures that transsexual people are afforded all
the rights and responsibilities appropriate to that gender.
If a transsexual person is successful in applying for gender recognition, and they
are unmarried, they will get a full gender recognition certificate (GRC), and if
their birth was registered in the UK will be automatically entered on the Gender
Recognition Register held by the Registrar General. Their original birth register
entry will be marked, confidentially, to indicate that they have become recognised
in their acquired gender.
They will then be able to marry a person of the opposite gender and be eligible
for the state retirement pension and other benefits at the age appropriate to their
Individuals who are married cannot receive a full GRC because marriage
between two members of the same sex is unlawful. They may, however, apply to
a Gender Recognition Panel for an interim GRC.
This enables them to obtain a full GRC after their marriage is annulled, and
provides a new ground for annulment.
Anyone holding a Gender Recognition Certificate also acquires new privacy
rights. Anyone who acquires such a person‟s trans history 'in the course of official
duties', including a trade union representative, will be subject to prosecution if
they pass that information to a third party (for example, the employer or the union
head office) without the consent of the individual affected.
8. Data Protection Act 1998 (DPA)
Under the Data Protection Act 1998, transsexualism and gender reassignment
would constitute „sensitive data‟ for the purposes of the legislation. It can only be
processed for certain specified reasons set out in the Act.
9. Disability Discrimination Act 1995 (Amendment) Regulations 2003
The Disability Discrimination Act 1995 protects people who have progressive
conditions such as HIV, but only once they develop symptoms – this is until
December 2005, when conditions will be covered from the point of diagnosis, i.e.
before the condition has an effect on normal day-to-day activities.
Individual rights under the Disability Discrimination Act 1995 must be considered
where the individual has been diagnosed as having „Gender Dysphoria‟ or
„Gender Identity Disorder‟ and the condition is likely to last for more than twelve
months, lasted twelve months or will remain with the individual for the rest of their
10. Breach of contract
You can refer to Equal Opportunities policies covering sexual orientation to show
that there has been a Breach of Contract in discriminating against someone.
You must make sure that the policy is incorporated into the Contract of
Employment . If the policy has been notified to all staff in the same way as all
other changes to the Contract are notified then it is likely it would be seen as
incorporated. Court actions for Breach of Contract have to be raised within 6
years of the Breach (or 5 years in Scotland).
11. Vicarious Liability
An employer is vicariously liable for negligent acts or omissions by his employee
in the course of employment whether or not such act or omission was specifically
authorised by the employer. To avoid vicarious liability, an employer must
demonstrate either that the employee was not negligent in that the employee was
reasonably careful or that the employee was acting in his own right rather than
on the employer's business.
Tighter statutory rules apply in sex, racial and disability discrimination cases (see
SDA 1975, s.41, RRA 1976, s.32, DDA 1995 s.58), subject to the important
defence set out in the last sub-section of each of those sections that the
employer can escape liability if he can show that he took such steps as were
reasonably practicable to prevent the employee from doing the discriminatory
The normal common law rule enables employers to escape liability for misdoings
by employees if the act complained of was not done "in the course of
employment". This does not simply mean "while at work" - for common law
purposes something is done "in the course of employment" if it relates to what
the employee was employed to do. Employers always expressly or impliedly
authorise employees to do what is needed to get their jobs done and are
therefore liable for any resulting loss or damage.
This can have result that the worse an employee's behaviour, the easier it can be
for the employer to escape liability. The employer merely has to show that the
employee's misdeed was not needed to get the job done and was not authorised.
It will then follow that it was not "in the course of employment" (even though done
while at work) and the employer will be absolved of legal liability.
Statute overrides the common law and the Court of Appeal ruled in Jones v
Tower Boot Co Ltd CA 1997 ICR 254, CA that the words "in the course of
employment" in the anti-discrimination Acts do not have the common law
meaning noted above. Instead they have the ordinary common-sense meaning of
"done while at work". Employers will therefore be liable under the race, sex and
disability discrimination Act sections noted above for all acts of their employees
while at work. It is no defence for the employer to show that he was not aware of
what was going on or that he had not authorised it. His only defence is the one
provided by the sections themselves, namely that he had taken "such steps as
were reasonably practicable to prevent" the employee doing the act(s) in
The practical conclusion is that employers are well advised to have an effective
and formal anti-discrimination policy in place if there is the slightest chance of
any of their employees harassing or victimising or bullying any one, whether
fellow employee or not, while at work.
From Equal Opportunities Commission:
I am being harassed at work because my colleagues have found out that I
am a transsexual person. What can I do?
You should ask your colleagues to stop harassing you. You should report their
behaviour to your employer who should take reasonable steps to stop the
harassment from continuing. If the harassment continues or your employer fails
to deal with your complaint to your satisfaction you can make a claim to an
employment tribunal against your employer and your colleagues who are
I am a lesbian being harassed at work by my colleagues because of my
sexual orientation. Can I take a claim of sex discrimination?
A. Yes. You can take a claim of sex discrimination if a gay person of the
opposite sex would have been treated more favourably or if the conduct is of a
sexual nature. You can also take a claim of sexual orientation discrimination. For
advice on this contact PCS.
My boss, who is also a woman, is sexually harassing me. Can I make a
claim of sex discrimination?
If the incidents took place before 1 October 2005:
Yes. You will be able to take a claim if you can show that she would not have
behaved this way towards a man.
If the incidents took place after 1 October 2005:
Yes. You will be able to take a claim if you can show that she would not have
behaved this way towards a man or if the conduct is of a sexual nature and that
conduct has the purpose or effect of violating your dignity, or of creating an
intimidating, hostile, degrading, humiliating or offensive environment for you.
Discrimination in the "course of employment"
What does "in the Course of Employment " mean?
Under the Sex Discrimination Act (SDA), an employer is responsible for the
behaviour of their employees only whilst they are at work. Because of this, you
can only take a claim of sexual harassment under the SDA if the sexual
harassment you are complaining about took place where you work, at a work
function such as during an interview for a job or at a work related event such as
attendance at a conference or works party.
Whilst out with colleagues, socially for a drink after work, I was sexually
harassed by a colleague. Can I take any action?
The SDA outlaws sex discrimination in a wide variety of contexts "in the course
of your employment". In certain circumstances, you may be able to take action if
it can be shown that although this was a social activity, it was linked to your
employment in some way.
I was sexually harassed by the interviewer when I was being interviewed
for a new job. I left the interview very upset. Can I take any action?
Yes. You do not have to be in employment with the company to do so. You
should complain to the Company's head office. You can also take a claim to the
A Guide to Civil Partnerships – What employers need to know
New legislation from December 2005 enables two non-related, unmarried adults
of the same sex to register a civil partnership, which has many of the same rights
and responsibilities as marriage.
What does this mean?
Same sex couples who register as civil partners have equal treatment with
married couples in a wide range of matters including employment and vocational
So whatever benefits you provide to married employees and their spouses must
be provided to employees who are civil partners and to their civil partners – for
example survivor pensions, flexible working, statutory paternity pay, paternity and
adoption leave, health insurance or time off before or after marriage / registration.
There are no legal requirements to offer such benefits to couples of either the
same or opposite sex who have not entered into a marriage or civil partnership.
However, where benefits are made available to unmarried couples of opposite
sex they must be extended equally to same sex couples who have not registered
a civil partnership.
What you should do
Review and revise all policies, guidance, forms and other material to
reflect the new arrangements and make clear that wherever 'spouses' and
'marriage' are used that that includes 'civil partners' and 'civil partnerships'.
Let all your staff know about these changes and remind them not to
discriminate directly or indirectly on the grounds of actual or perceived
Ensure that employees know how to claim any relevant benefits. Ensure
that your occupational pension schemes give the same benefits to civil
partners as to widows and widowers - further guidance on pensions is
available from The Pensions Service.
Maintain confidentiality where employees want it. No one should have
their sexual orientation revealed or inferred by inappropriate disclosure of
Avoid forcing people to identify themselves as either married or in a civil
partnership. In most situations because the treatment given to civil
partners and married people is the same, there should be no need for
separate identification. However, some employers may want to record
data for equality and diversity monitoring. In either case, any data which is
held should be held confidentially and securely so that no-one's status can
be inappropriately disclosed or deduced and procedures to access
benefits should be similarly secure. There is no legal duty for employees
to inform their employer of registration of a civil partnership.
Where people want to change their name on entering into a civil
partnership, accept civil partnership certificates as evidence of the name
Be aware that some same-sex couples in certain official relationships from
Belgium, Denmark, Finland, France, the Netherlands, Norway, Sweden,
Vermont USA or Nova Scotia and Quebec in Canada may automatically
be treated as civil partners in the UK.